Federal Court of Australia

Auerbach v Seven Network (Operations) Ltd [2026] FCA 799

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application is dismissed.

2.    The applicant pay the respondent’s costs of the interlocutory application to be taxed on an indemnity basis.

3.    Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the proceeding be referred to mediation by District Registrar Farrell of the Court, such mediation to be conducted by 31 July 2026, or by such further date as the District Registrar deems necessary. The parties, and in the case of the respondent, an officer with authority to compromise the proceeding, shall attend the mediation. The District Registrar is otherwise authorised to give directions as to the conduct of the mediation including as to the attendance of any other persons whom the District Registrar considers necessary for an effective mediation, and the provision of appropriate documents including position papers. The mediation may be conducted by remote access technology, or in such other manner as determined by the District Registrar.

4.    There be no costs orders made in relation to the mediation with each party to bear their own costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Ex tempore, revised

WHEELAHAN J:

1    The applicant, Mr Auerbach, has filed an interlocutory application seeking a variety of orders. The orders sought include orders striking out pleadings, summary judgment, interlocutory injunctions restraining publications, an application to enlarge the limitation period in respect of defamation claims against non-parties and to join those parties to the proceeding, interlocutory injunctions directed to claimed conflicts, abuse of process and contempt, leave to issue a subpoena directed to a judge of the court, and indemnity costs.

Background

2    The proceeding is currently fixed for trial commencing 12 October 2026. Pleadings are closed, discovery has taken place, the parties have filed affidavits which are to stand as the deponents’ evidence-in-chief, and in the case of one witness subpoenas to give evidence and to produce documents have been issued.

3    There are two parties to the proceeding: the applicant and the respondent (Seven). There is a claim and there is a cross claim. The issues in the proceeding are identified in five pleadings –

(a)    the applicant’s statement of claim dated 21 March 2025;

(b)    Seven’s amended defence dated 7 November 2025;

(c)    the applicant’s reply dated 14 November 2025 to the amended defence;

(d)    Seven’s amended statement of cross claim dated 7 November 2025; and

(e)    the applicant’s defence dated 14 November 2025 to the amended statement of cross claim.

4    The applicant was represented when he commenced the proceeding and his pleadings were prepared by his then solicitors and settled by senior counsel. He is now self-represented. Seven is represented by its solicitors, Addisons, and by senior and junior counsel.

5    The applicant is a former employee of Seven. The applicant’s employment ceased in August 2023. The applicant worked as a producer on Seven’s Spotlight program and worked with a Mr Steve Jackson who was also a producer of the program. The applicant’s evidence on this interlocutory application is that Mr Jackson is now employed as a journalist by The Australian newspaper. The applicant admits that by March 2024 he had come to hate Mr Jackson. At the request of Seven the Court has issued a subpoena to Mr Jackson to give evidence at the trial of this proceeding.

The applicant’s substantive claims in the proceeding

6    By his originating application and statement of claim the applicant seeks a declaration, permanent injunctions, and damages against Seven in relation to three publications.

7    The first publication is substantially admitted. The applicant alleges that on or about 20 March 2024 a Mr Bruce McWilliam, then Commercial Director of Seven, spoke to a journalist working for news.com.au, Ms Samantha Maiden, and published the following words, or words to the same effect –

In November, 2022, Seven became aware that a Spotlight program employee had used a Seven credit card to purchase personal services, without the knowledge of anyone else at the Network. When informed about this, Seven insisted that the employee pay for the services themselves and repay the credit card in line with the Seven Network’s expenses policy. The producer was counselled and provided with a written warning. Seven considers the matter has been dealt with appropriately.

8    The second publication alleged by the applicant is that a person employed or contracted by Seven or Mr McWilliam sent an email to Ms Maiden to the same effect as the spoken words the subject of the first publication. Seven denies the second publication.

9    The third publication the subject of the applicant’s claims is a statement by a Seven spokesperson to the ABC program Media Watch on 25 March 2024 –

As has been reported in the press, the misuse of the credit card was admitted by the person involved straight away and all unauthorised expenses were repaid immediately by the person. The person involved was disciplined at the time and no longer works for the company. For confidentiality and privacy reasons we cannot link to any particular name.

Your question is absurd. There is no method. As stated, it was a personal misuse of the card, immediately admitted to and paid for personally.

10    The third publication is admitted by Seven, which alleges that the statement was provided in response to a series of questions put to Seven by Media Watch. The applicant alleges that the Media Watch statement was published by the ABC on 25 March 2024 as part of its Media Watch program. Seven denies that the Media Watch statement was published in full as part of the television program but admits that words in the statement were available for download from the ABC website.

11    The applicant alleges that the publications were disparaging of him and were made in breach of clause 7(b) of a deed made between Seven and the applicant in September 2023 by which Seven agreed not to authorise the publication of any statement or comment which disparages the applicant or is likely to injure the applicant’s reputation. Seven denies that the publications were disparaging of the applicant or likely to injure his reputation.

12    The applicant also alleges that Seven’s statement to Media Watch was defamatory of him and that he suffered serious harm as a result. The applicant alleges that it conveyed imputations that the applicant was disciplined and that Seven terminated the applicant’s employment because of the misuse of a corporate credit card. Seven admits that the Media Watch statement conveyed the imputation that the applicant was disciplined as an employee of Seven because of the misuse of a corporate credit card but denies the other imputations. Seven denies that the applicant suffered serious harm as a result of the publication of the Media Watch statement. By way of positive defence Seven alleges that the Media Watch statement conveyed contextual imputations that were substantially true by reason of which the imputations of which the applicant complains did not further harm his reputation.

Seven’s cross claim

13    Seven has filed a cross claim against the applicant alleging breaches of contractual obligations of confidence in relation to the claimed retention and disclosure of documents and breach by the applicant of a non-disparagement clause that were in the deed that the parties executed in September 2023 which is the same deed on which the applicant relies in support of his claims. Seven seeks a declaration, an injunction, orders for delivery-up or destruction, and damages.

14    The applicant has alleged in his defence to the statement of cross-claim that in March 2024 he was contacted by the journalist, Ms Samantha Maiden, who put to him allegations that he had misused a Seven credit card to pay for sexual services for a Mr Bruce Lehrmann in order to secure an exclusive interview with him on Seven’s Spotlight program, that he had been directed by Seven to repay the funds, and that his employment had been terminated on account of the credit card allegations. In addition, the applicant alleges that journalists from the Daily Telegraph put to him allegations that he and Mr Jackson had fallen out, and that some years earlier he and Mr Jackson had engaged in sexual activity with a particular woman and had consumed illicit drugs with the woman.

15    The applicant alleges in his defence to Seven’s cross claim that he believed that Mr Jackson was the source of the allegations that were put to him by the journalists. The applicant alleges that he responded to the allegations on an off-the-record basis by denying that Seven had directed him to repay the funds and by denying that Seven had terminated his employment on account of the credit card allegations but said to the journalists that he could not disclose the circumstances of his exit from Seven. The applicant also alleges that by way of response to the claims put to him by Ms Maiden and by the Daily Telegraph he communicated the content of some text messages passing between him and Mr Jackson relating to the credit card allegations and provided photographs to senior staff at the Daily Telegraph on an off-the-record basis. These communications are the subject-matter of Seven’s cross claim that the applicant imparted information to Ms Maiden and other members of the media in breach of confidentiality obligations.

The orders sought by the applicant in his interlocutory application

16    I will set out the orders sought by the applicant later when addressing his claims. In summary, the applicant seeks the following relief in his interlocutory application –

(a)    orders striking out pleadings;

(b)    summary judgment;

(c)    final relief, namely a declaration and damages including aggravated and exemplary damages;

(d)    injunctions directed to various publications external to this proceeding;

(e)    injunctions restraining certain persons – including non-parties – from acting for other persons;

(f)    an extension of the one-year limitation period within which to bring an action in relation to publications not currently the subject of this proceeding;

(g)    the joinder of additional respondents to this proceeding in relation to additional claims for defamation;

(h)    an application for leave to issue a subpoena directed to a judge of this Court and the Court’s Registry; and

(i)    that the applicant be awarded indemnity costs in respect of all matters.

17    I will address the orders sought and set out their terms later in my reasons.

The applicant’s affidavit

18    The applicant’s interlocutory application was supported by an affidavit sworn by the applicant on 12 May 2025. At the hearing of the interlocutory application, I ruled that several passages in the affidavit were inadmissible and I received the email correspondence annexed to the affidavit as evidence of the fact the emails were sent and of their contents, but not as evidence of the truth of any representations within them. I also ruled as inadmissible two emails contained in the bundle which appeared to be substantially similar on the ground that they were without prejudice communications which engaged s 131 of the Evidence Act 1995 (Cth).

19    The applicant stated that Mr Jackson is now a journalist writing for The Australian and appearing on an associated podcast titled The Front. The applicant deposed that The Australian newspaper is published by Nationwide News Ltd (News). The applicant’s affidavit raises a number of complaints relating to articles published in The Australian newspaper and matters apparently published on the associated podcast. The applicant summarised some of the relevant events as follows.

20    In April 2024 the applicant gave evidence in Lehrmann v Network Ten Pty Ltd: see Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369; 422 ALR 507 (Lehrmann) at [166] to [168] (Lee J).

21    In around August 2024 the ABC’s Four Corners program broadcast a documentary that featured footage of the applicant and a report of his evidence in Lehrmann. The applicant claimed that the program was critical of Seven’s workplace culture and that it featured documents – not provided by the applicant – that evidenced bullying that the applicant had experienced while working on the Spotlight program.

22    On 7 April 2026, the applicant caused a concerns notice to be sent to The Australian regarding several articles authored by Mr Jackson appearing in its publications.

23    Beginning on 1 May 2026, the applicant sent a series of emails to various combinations of recipients, including Seven, News, and their legal representatives, setting out his complaints and attaching documents purporting to contain the impugned published matters of Mr Jackson. The attachments to the emails were not annexed to the affidavit and are therefore not before the Court, nor does the applicant’s affidavit provide sufficient details of the publications to identify them. Rather, across two pages of his affidavit the applicant set out what he claimed were quotations from matters published by Mr Jackson in either The Australian or The Daily Mail Australia. I will not set out or summarise these quotations. All of them appear stripped from their context. None of them refers to this proceeding or to the applicant.

24    Throughout the applicant’s affidavit are allegations of misconduct of some type against Seven, News, and Mr Jackson. Some of the allegations appeared in passages that I ruled to be inadmissible. Otherwise, these allegations, which are to varying degrees vague and lacking an apparent evidentiary foundation, are as follows –

(a)    Mr Jackson has published or rehearsed evidence pertinent to matters in respect of which he has been subpoenaed to testify;

(b)    Seven and Mr Jackson have been acting in concert to publish material designed to promote Seven’s case in the public eye against the applicant’s case; and

(c)    Addisons, the lawyers for Seven, and Thomson Geer, the lawyers for News, each have a conflict of interest because both firms formerly acted for the applicant in his personal capacity.

25    The applicant made claims in the emails annexed to his affidavit, many of which I ruled as inadmissible, which included that –

(1)    The substance of allegations in the pleadings in this proceeding had been reported in The Australian.

(2)    Mr Jackson made repeated attempts to contact the applicant’s former counsel, Ms Sue Chrysanthou SC, causing her to cease acting for him. The applicant’s evidence did not explain why or the circumstances in which he terminated the retainer of his solicitors as evidenced by his notice of termination of lawyer’s retainer dated 19 March 2026 which he signed and filed;

(3)    The applicant was cross-examined by Mr Richardson SC who appeared for Mr Lehrmann in the Lehrmann proceeding, and who is senior counsel for Seven in this proceeding. The applicant claimed that Mr Richardson had been briefed with information provided to him by Mr Jackson, claiming that such information must have informed the questions that Mr Richardson put to him in cross-examination. The applicant claimed that as a result, the trial judge made various negative remarks about his evidence which were informed by his answers to questions which he claimed were in effect authored by Mr Jackson or Seven; and

(4)    Thomson Geer proofed the applicant prior to giving evidence in the Lehrmann proceeding and had subpoenaed him to produce documents and to give evidence. The applicant claimed that Thomson Geer was in possession of hundreds of pages of his confidential material. It is worth noting here that Thomson Geer acted for the respondent Network Ten Pty Ltd in Lehrmann, and that neither Thomson Geer nor Ten is a party to this proceeding.

26    There were other passages of the applicant’s affidavit that I ruled inadmissible as evidence but treated as submissions. Amongst the applicant’s claims received as submissions was a claim that the intent and effect of the publications to which the applicant had alluded had been to intimidate, confuse, distract, pressure, harass and deceive him. The applicant claimed in his affidavit by way of conclusion that he was “comfortably of the view that a most egregious, planned and deliberate contempt” of the Court had been undertaken by two of Australia’s largest media companies “in cohort with senior solicitors and barristers” such that the Court should give him the relief sought in his interlocutory application. While the affidavit alleges contempt of court, as I explain in the following section there is no statement of charge before the Court and there is no application that any person be punished for contempt. The relevance of the applicant’s allegations of contempt is limited to his interlocutory application for judgment and for interlocutory injunctions.

Disposition

27    I will address further the relevance of certain claims of contempt of court made by the applicant before addressing in groups the orders sought by the applicant.

There is no statement of charge before the Court

28    The applicant’s interlocutory application does not seek any order that any party to this proceeding be punished for contempt of court. The closest that the interlocutory application comes to any contempt-related issues is the claim for injunctions in paragraphs 5 and 6 of the orders sought and possibly the claim for summary judgment in paragraph 2.

29    On 15 May 2026, the applicant lodged for filing a statement of charge that was ostensibly in Form 137. The statement was directed to Seven and News. As I have mentioned, News is not a party to the proceeding and there is no claim that any person be punished for contempt.

30    Under s 31 of the Federal Court of Australia Act 1976 (Cth), subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. Part 42 of the Federal Court Rules 2011 (Cth) deals with contempt. Part 42 of the Rules is complemented by the Court’s Enforcement, Endorsement and Contempt Practice Note (GPN-ENF). Sub-rule 42.11(1) provides that if a party alleges that a contempt has been committed by a person in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by the party by interlocutory application in the proceeding. Sub-rule 42.11(2) provides that if it is alleged that a contempt has been committed by a person, but not in connection with a proceeding in the Court, the proceeding for punishment of the alleged contempt must be started by filing an originating application as a substantive proceeding. Rule 42.12 provides that an application alleging that a contempt has been committed must be accompanied by a statement of charge in accordance with Form 137, specifying the contempt with sufficient particularity to allow the person charged to answer the charge, and the affidavits on which the person making the charge intends to rely to prove the charge.

31    After the applicant’s purported statement of charge was lodged I formed the provisional view that the document was, on its face, an abuse of process and on 21 May 2026 I directed that the statement not be accepted for filing unless leave was first obtained from a judge of the Court: see r 2.26 and r 2.27(f). The applicant has not applied for leave to file the statement of charge and it has not been accepted for filing. Therefore, the statement of charge is not before the Court and it forms no part of these proceedings.

Paragraphs 1 to 4: the interlocutory applications for strike-out and final remedies

32    By paragraphs 1 to 4 of the interlocutory application the applicant seeks the following orders –

1.    The Respondent’s pleadings, including its Defence (or amended Defence) and Cross­claim (or amended Cross-claim) be struck out in their entirety for abuse of process, vexatious and irrelevant pleadings and trivial/scandalous material.

2.    Judgment entered for the Applicant.

3.    A declaration that The Respondent has breached the Deed and defamed the Applicant, and that the deed is otherwise void and/or rescinded.

4.    Damages including general damages, special damages, aggravated damages, exemplary damages and any other such damages as the court sees fit be awarded to the Applicant.

33    The relief sought by the applicant in paragraphs 1 to 4 of his interlocutory application is sweeping. Correspondingly, the applicant’s submissions in support were very broad. At the hearing of the application the applicant made several submissions directed to Seven and its legal practitioners which lacked any evidentiary foundation and which required intervention by the Court to require the applicant to focus on the orders sought in his interlocutory application. In places the applicant’s written submissions lack coherence and are difficult to follow. The applicant’s written submissions contained many adjectives. For instance, in his reply submissions the applicant described Seven’s pleadings as “inexplicable”, “improper”, “unsustainable”, “scripted”, and “often deranged”. In his written and oral submissions, the applicant made an array of unsupported claims. He made unsupported and irrelevant claims of a serious nature of collusion, abuse of process, and unlawful attempts to pervert the course of justice in this matter and in the Lehrmann matter. The applicant’s submissions included several references to asserted facts that are not the subject of evidence or otherwise having any apparent relevance to the issues that have been pleaded in this proceeding. The applicant claimed that he entered into the deed that is the subject of the parties’ claims as a result of “a combination of undue influence, duress, unconscionable conduct, misleading and deceptive conduct, misrepresentation by silence” and claimed that the deed is “contrary to public policy”. There is no pleaded allegation maintained by the applicant in his defence to the amended statement of cross claim to support these claims. Instead, by his statement of claim the applicant relies on the terms of the deed. The applicant claimed reliance on s 18 of the Australian Consumer Law relating to misleading and deceptive conduct and s 45AF on the Competition and Consumer Act 2010 (Cth) relating to cartel conduct. Those provisions have no relevance to any issue arising on the pleadings in this proceeding. Another example is that the applicant seeks by his interlocutory application an award of punitive damages when they are not available in relation to defamation claims or in relation to claims for breach of contract: Defamation Act 2005 (NSW), s 37; Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [13] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

34    The applicant submitted that it was significant that Seven had not filed any affidavit material in response to his affidavit, citing the principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298. The relevant principle is that the failure by a party, without explanation, to call a witness whom it would be expected to call is capable of giving rise to an inference that the witness’s evidence would not have assisted the party’s case. But the principle does not sit in the air. No potential inference arises unless, in all the circumstances, there is evidence that requires an answer: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 200 CLR 121 at [51] (Gleeson CJ and McHugh J). The applicant’s claims on this interlocutory application and his evidence in support are at such a high level of abstraction that I am not persuaded that the applicant has adduced any evidence of sufficient precision that requires an answer.

35    The applicant stated in his written submissions that he alleges a contempt of court on the part of Seven. In a submission that is difficult to understand the applicant claimed that he bore no burden to make out a contempt for his interlocutory application to succeed. A charge of contempt of court, whether civil or criminal, is a serious matter and must be proven beyond reasonable doubt: Witham v Holloway [1995] HCA 3; 183 CLR 525 at 534 (Brennan, Deane, Toohey and Gaudron JJ). The foundation of the modern law of contempt of court is the judgment of Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 (Bread Manufacturers). Any publication which has a tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a court of justice is a contempt of court. However, there must be “a real or substantial risk” of interference or a “real and definite tendency” to interfere with the due course of justice as opposed to a remote risk of prejudice to a fair trial: see Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation [1982] HCA 31; 152 CLR 25 (BLF) at 56, 60 (Gibbs CJ), 98, 99 (Mason J); Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 28 (Mason CJ), 41 to 42 (Wilson J), 70 (Toohey J), 87 (Gaudron J). In evaluating the risk, it is relevant to consider the type of proceeding, whether civil or criminal, and the mode of trial.

36    The applicant’s evidence is not capable of supporting a finding that Seven has committed or is a party to any contempt of court. The applicant has cast these allegations in a way that is strong on language but unsupported by evidence. The applicant has not adduced any direct evidence of the actual publications by News that he claims give rise to a contempt of court, still less any evidence that would implicate Seven in those publications. This is fundamental. And even if there were direct evidence of the content of the publications, the applicant would have to persuade the Court that there was some real and substantial risk of interference with the course of justice, which would be an ambitious task in relation to a civil trial by judge alone to the extent that the applicant seeks to claim that the publications might have some improper influence on the Court. That is because the risk of prejudice to the administration of justice takes on a different complexion in the case of a civil trial by judge alone where there would generally be a low risk that a judge would be swayed by publications in the media: Bell v Stewart [1920] HCA 68; 28 CLR 419 at 425 (Knox CJ, Gavan Duffy and Starke JJ); BLF at 58 (Gibbs CJ), 76 (Stephen J), 100 to 103 (Mason J), 135 to 136 (Wilson J).

37    The applicant submitted that the Court has power under s 37P(6) of the Federal Court of Australia Act to dismiss Seven’s cross claim, to strike out Seven’s pleadings in their entirety, to disallow or reject Seven’s evidence, and to award costs to the applicant on an indemnity basis. There is no question that the Court has power to control its own processes if they are being abused or if a litigant has, by its conduct, pursued proceedings with the object of preventing a fair trial. While the Court has broad procedural powers under the Act, the powers are to be exercised appropriately and in accordance with accepted appellate guidance. Broad procedural powers of dismissal or giving judgment such as those in s 37P(6) of the Act would not ordinarily be exercised for the purpose of punishment: British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524 at [150] (Phillips, Batt and Buchanan JJ), citing Logicrose Ltd v Southend United Football Company Ltd (unreported, Chancery Division, Mustill J, 5 February 1988). Further, the power to order the summary dismissal or stay of a proceeding as being vexatious or an abuse of process is usually exercised in only the clearest of cases. That is because the effect of such an order is to deny a final hearing to the party affected by it. The principles were stated by Dixon J in Cox v Journeaux [No 2] [1935] HCA 48; 52 CLR 713 at 720 and have been consistently applied since: see Rozenblit v Vainer [2018] HCA 23; 262 CLR 478 at [9] to [14] (Kiefel CJ and Bell J) and [63] to [68] (Gordon and Edelman JJ).

38    The applicant made liberal references in his submissions to abuse of process. He cited Williams v Spautz [1992] HCA 34; 174 CLR 509 as an instance where proceedings were stayed upon the court holding that they had been brought for an improper purpose. Nothing has been advanced by the applicant that persuades me that Seven’s pleadings are an abuse of process, vexatious, irrelevant, trivial, or scandalous. The applicant has advanced a claim in defamation which invites the contextual truth defence that Seven has alleged. Triable issues of causation appear to arise in relation to the applicant’s claims of damage to reputation as a result of the alleged breach by Seven of the non-disparagement clause in the deed, and in relation to the applicant’s allegation that he suffered serious harm for the purpose of satisfying the serious harm element in s 10A of the Defamation Act. And triable issues appear to arise on the face of the pleadings in relation to the question whether the applicant was himself in breach of obligations of confidentiality and non-disparagement under the deed into which the parties entered. These are all matters for trial.

39    The applicant further submitted that the Court has power under s 31A of the Federal Court of Australia Act to give summary judgment. While that is correct, any exercise of power under s 31A would be conditioned on the Court being satisfied that Seven has no reasonable prospect of defending the proceeding or successfully prosecuting its cross claim. The applicant has not advanced any cogent arguments that are capable of engaging this threshold with the result that the Court’s summary judgment powers under s 31A of the Act do not arise for consideration.

40    The applicant referred to the power under r 16.21(1) of the Federal Court Rules to strike out pleadings on the grounds that they: (a) are scandalous; (b) are frivolous or vexatious; (c) are evasive or ambiguous; (d) are prejudicial, embarrassing or likely to cause delay; (e) fail to disclose a reasonable cause of action, defence or case appropriate to proceedings; or (f) are otherwise an abuse of the process of the court. The applicant did not in his submissions point to any pleading by Seven that was embarrassing in form. Otherwise, for the reasons given above the issues raised by the parties’ pleadings are matters for trial.

Paragraph 5: interlocutory injunction directed to publications

41    By paragraph 5 of the interlocutory application the applicant seeks the following order –

5.    In the alternative, Mr Steve Jackson, News, Addisons, Thomson Geer and The Respondent (The Group) be injuncted from publishing any material relevant to these proceedings until the conclusion of trial.

42    The power of the Court under s 23 of the Federal Court of Australia Act to make orders, including interlocutory orders, as it thinks appropriate includes the power to make orders to protect the integrity of its own processes and to enjoin a threated contempt of court: BLF at 52 (Gibbs CJ). As with any application for an interlocutory injunction, the principles referred to by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [65] to [72] apply: Bastiaan v Nine Entertainment Co Holdings Ltd [2022] FCA 60; 405 ALR 50 (Bastiaan) at [58] (Rares J). The applicant must show a prima facie case for a permanent injunction to restrain an apprehended contempt of court and show that the balance of convenience favours making the order. In determining whether a prima facie case has been shown it is relevant to have regard to the standard of proof that would apply on a final hearing, and to the seriousness of the conduct that is alleged because s 140(2) of the Evidence Act would be engaged: Bastiaan at [78].

43    A contempt of court may be committed if a person publishes material for the purpose of prejudicing a party to litigation thereby interfering with the due course administration of justice: Bread Manufacturers at 250. Instances include publications for the purpose of placing improper pressure on a party to litigation, as with Attorney-General v Times Newspapers [1974] AC 273 and Kazal v Thunder Studios Inc [2017] FCAFC 111; 256 FCR 90. However, not all publications which have a tendency to prejudice or embarrass a party which is conducting litigation amount to a contempt of court. There are competing public interests in discussing public affairs generally and in making and receiving fair and accurate reports of court proceedings: Bread Manufacturers at 249. Publications of these types may have the collateral effect of pressuring or embarrassing a party to litigation, but without more, such as an intention to prejudice the due administration of justice, there would ordinarily be no contempt. Therefore, in determining whether interlocutory relief should be granted to restrain an apprehended contempt, caution should be exercised in conformity with the principles that apply to findings of contempt on a final basis, as to which see: John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; 93 CLR 351 at 370 (Dixon CJ, Fullagar, Kitto and Taylor JJ).

44    There are several reasons why the order sought in paragraph 5 of the interlocutory application must be refused. At a procedural level there is no evidence that Mr Jackson, News, or Thomson Geer have been formally served with the application. On a more substantive level, there is no sufficient evidence to persuade me to find that the applicant has established any apprehended contempt of court. No actual publications have been tendered, and it is therefore not possible for the Court to find that any of Mr Jackson, News, Addisons, Thomson Geer or Seven has engaged or is likely to engage in conduct that would give rise to a real or substantial risk of interference with the due course of justice. Furthermore, even if there was some evidence that supported the applicant’s application, the terms of the order sought are far too broad and I would not make the order.

Paragraph 6: interlocutory injunction directed to claimed conflicts, abuse of process and contempt

45    By paragraph 6 of the interlocutory application the applicant seeks the following order –

6.     The Group be injuncted from acting for each other or themselves in these (or related) proceedings due to conflict of duties and interest, abuse of process and contempt.

46    The term “the Group” is defined by the applicant’s interlocutory application as Mr Jackson, News, Addisons, Thomson Geer and Seven. The terms of the order that is sought are broad and uncertain.

47    The Court has power to enjoin a party from retaining a particular legal practitioner in a proceeding and a corresponding power to enjoin a legal practitioner from acting. The grounds and basis on which an order of this type can be made are discussed in several cases, including Maclean v Brylewski [2025] FCAFC 133; 312 FCR 318 (Maclean) (Jackson, Moore and Stellios JJ), Porter v Dyer [2022] FCAFC 116; 402 ALR 659 (Lee J, Besanko and Abraham JJ agreeing in substance), Mumbin v Northern Territory (No 1) [2020] FCA 475 (Mumbin) (Griffith J), and Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 (Sent) (Nettle J). The grounds include an application based upon the apprehended misuse of confidential information by the legal practitioner amounting to a “real and sensible possibility” of misuse: Porter at [74]. The foundation for an application on this ground is equitable or contractual obligations of confidence. Where the apprehended misuse of confidential information is the basis on which the order is sought, it is usually necessary to identify with precision the confidential information, although this requirement may be applied with a degree of flexibility depending upon the circumstances: Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 314 to 315 (Drummond J); Sent at [66] to [70]. Some cases, such as Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; 4 VR 501 (Spincode) have decided that a solicitor has a duty of loyalty to a former client that survives the termination of the retainer with the consequence that a solicitor could not act for the former client in a closely related matter. Spincode has not been followed on that point in this Court: Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 (Beach J). Another basis on which the power may be exercised is the Court’s implied power to protect the integrity of the judicial process. The applicable principles were stated by Griffith J in Mumbin at [39] in terms that were approved by the Full Court in Porter at [113] –

The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:

(a)    The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).

(b)    The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see [Nash v Timbercorp Finance Ltd (In liq) [2019] FCA 957; 137 ACSR 189] at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).

(c)    Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).

(d)    This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).

(e)    This basis for disqualification is an “exceptional one” and is “to be exercised with appropriate caution” (Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; (2006) 237 ALR 612 at [35] per Young J).

(f)    A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is “as good as” a client (Macquarie Bank Ltd v Myer [1994] VR 350 at 359 per J D Phillips J).

(Emphasis in original).

48    It is unnecessary on this application to enter upon the question of the correct formulation of the fair-minded, reasonably informed member of the public test referred to by Griffith J in Mumbin, and whether it is referrable to a conclusion that the hypothetical referee “might” or “would” reach: see the discussion by Lee J in Porter v Dyer at [114]. The difference between the two formulations is not material to the outcome of this application: see also Maclean at [24].

49    The applicant claimed that Seven’s solicitors, Addisons, and the solicitors for News (which is not a party to the proceeding), Thomson Geer, have conflicts of interest in acting for their respective clients. He claimed that both firms had acted for him in a personal capacity, although no evidence of any retainer was adduced by the applicant. The applicant in his affidavit made unsupported conclusory claims of “wilful professional misconduct” against the legal practitioners which I ruled inadmissible. He claimed that he wished to call the solicitors and senior counsel for Seven as witnesses in the proceeding. No application for leave to issue a subpoena to any legal practitioner has been made by the applicant, and there is no apparent basis on which the evidence of any of the legal practitioners could be relevant to the issues in this proceeding: see generally Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622; 195 FCR 43 (Bromberg J).

50    The applicant has failed to demonstrate that Addisons, the lawyers for Seven, are in possession of any confidential information. No confidential information has been identified, even to the lower threshold referred to by Nettle J in Sent. The bare assertion that Addisons previously acted for the applicant is not sufficient to found a claim of conflict such that the Court should intervene. Even on the assumption that Addisons previously acted for the applicant in some capacity, Addisons has no ongoing duty of loyalty to the applicant. Further, none of the facts in evidence or any combination of those facts would support a finding that a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that Addisons be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice.

51    As for Thomson Geer, it is not acting for Seven in this proceeding and there is no cogent basis advanced on which the applicant is entitled to any relief against it on the ground of some suggested conflict. As for News, it is not a party to the proceeding and there is no cogent basis advanced to suggest that it is involved in some conflict which would attract the Court’s power to remedy. The same conclusion applies to Mr Jackson, who is not a party to the proceeding but is a witness.

52    Finally, there is no tenable basis in the evidence to support the applicant’s other claims that any of the persons comprising “the Group” are associated with any abuse of process or contempt of court in this proceeding.

Paragraph 7: application to enlarge the limitation period and joinder of additional respondents

53    By paragraph 7 of the interlocutory application the applicant seeks the following order –

7.    An extension of the limitation period for suing in defamation be granted to the Applicant in respect of The Australian’s publications and/or both News and Mr Jackson be joined to these proceedings as Respondents/Cross-applicants.

54    There is a one-year limitation period under s 14B of the Limitation Act 1969 (NSW) in relation to an action on a cause of action for defamation. Under s 56A of the Limitation Act a court may extend the limitation period for a period of up to three years from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed. There are corresponding provisions in the other states and territories of Australia.

55    The order sought by the applicant in paragraph 7 of the interlocutory application is refused for the following reasons, which do not require elaboration –

(a)    the alleged publishers are not parties to the application;

(b)    the publications have not been identified;

(c)    there is no sufficient evidence on which the Court would be satisfied that it would be just and reasonable to allow an action on the unidentified publications to proceed; and

(d)    in any event, to the extent that the applicant seeks the joinder of additional parties and additional causes of action, in circumstances where this proceeding is ready for trial that course it would be contrary to the interests of justice and contrary to the overarching object in s 37M of the Federal Court of Australia Act.

Paragraph 8: application for leave to issue subpoenas

56    By paragraph 8 of the interlocutory application the applicant seeks the following order –

8.    Leave be granted to the applicant to serve subpoenas on either the NSW Registry of the Federal Court of Australia or Mr Michael Lee as author/publisher/copyright holder of ‘He Went Back for His Hat’ for access to

a    The initial judgment of Lee J in Lehrmann v Ten authored prior to the evidence adduced at the reopening ordered on 2 April 2024, and

b    Lee J as a witness in his capacity as author. publisher and copyright holder of ‘He Went Back for His Hat’ in these proceedings.

57    Under s 16(2) of the Evidence Act a judge is not compellable to give evidence about a proceeding unless the court gives leave. The applicant has not sought leave under s 16(2). Any such application would be doomed to failure. Apart from anything else, the applicant has not shown that the evidence would be relevant to any issue in this proceeding and has therefore failed to show that there is any legitimate forensic purpose justifying the subpoenas. In addition, it is a fundamental principle that a judge’s reasons for a decision are those that are published. It would undermine judicial independence to compel judges to testify in relation to other aspects of their reasons: see Knowles' Trial (1692) 12 How St Tr 1167; Zanatta v McCleary [1976] 1 NSWLR 230 at 234 (Street CJ), 239 (Samuels JA); Herijanto v Refugee Review Tribunal [2000] HCA 49; 170 ALR 379 at [15] (Gaudron J); Queensland v Stradford (a pseudonym) [2025] HCA 3; 421 ALR 376 at [110] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). For the same reasons, the applicant’s application to issue a subpoena directed to the Court’s registry for the production of documents to the same end is also refused.

Paragraph 9: costs

58    By paragraph 9 of the interlocutory application the applicant seeks the following order –

9.    Costs awarded to the Applicant on an indemnity basis in respect of all matters.

59    As the applicant has failed in his application this paragraph falls away.

Conclusions

60    The applicant’s interlocutory application is dismissed. I will hear the parties on costs.

Associate:

Dated:    23 June 2026